Between social-cannibalistic injustice and foundational justice: open letters to the President of the NBA and the AGF

This open letter to you will be very brief, even though the issues that I will discuss in the letter would normally take nothing less than a whole book, perhaps plus a three-day conference of patriotic lawyers and non-lawyers to adequately explore in all their ramifications. In The Punch of Thursday, November 26, 2015, you were reported as having tendered an apology on behalf of the Nigerian Bar Association to the Justices of the Supreme Court for criticisms that some members of the NBA had made of their Justices’ ruling in favour of Bukola Saraki’s lawyers’ suit for a stay of proceedings in the Code of Conduct Tribunal hearing of the Federal Republic of Nigeria (FRN) V. Bukola Saraki case. Even though I don’t need to remind you of the following fact I will do so, if only for rhetorical reasons: the whole country and perhaps large segments of the international community are closely following this FRN V. Bukola Saraki case.

Undoubtedly, this national and international interest has to do with the fact that the accused person in the case is none other than the President of the Nigerian Senate. However, of far greater significance is the fact that many within and outside Nigeria see this FRN V. Bukola Saraki case as a test case which will give clear intimations of whether or not in the Buhari era and after the signing into law of the Administration of Criminal Justice Act of 2015 (ACJA), criminal cases involving accusation of colossal looting of public funds by highly placed politicians and public officeholders in our country can be expeditiously and successfully tried in Nigerian law courts. Again, even though I don’t have to remind you of this fact, I will do so: in the last sixteen or so years, expeditious and successful trials of Nigerian looters have for the most part taken place outside the country, hardly ever in Nigeria itself.

I have said that I will be brief in this letter and I shall keep to my word. And so for this reason, out of the many issues that arise from the Supreme Court’s ruling in favour of Saraki in the case and your apology on behalf of the NBA for criticisms of their Justices’ ruling, I shall limit myself to only TWO issues. The first issue is the very idea, the very act of apologizing for criticism of a ruling – any ruling – of the Supreme Court by members of the NBA. The second issue is this: the very strong implication in your apology that despite the signing into law of the Administration of ACJA 2015, the NBA is of the opinion that the status quo remains and interlocutory appeals and stays of proceedings will continue to hold sway as operative principles of criminal justice in Nigeria. Let me now address each of these two issues with the brevity that the space of this newspaper column allows me.

Dear Learned Barrister Alegeh, on your reported apology to the Supreme Court Justices, if you don’t know it, perhaps you need to be told in the full glare of public opinion that your apology has been generally and accurately interpreted as a neo-fascist declaration that any criticism of Supreme Court rulings amounts to justiciable contempt for the Justices of the highest Court in the land. As a matter of fact, prior to the tendering of your apology, Mr. J.B. Daudu, the leading counsel in Saraki’s defence, had publicly threatened to have anybody, lawyer or no lawyer, who criticizes the ruling of the Supreme Court in the case prosecuted for contempt!

To say the least, this is very, very strange coming in a period that has presumably moved beyond rule by autocratic decrees, by the unquestionable judicial fiat of military dictators. At any rate, it is heartening that many senior and highly respected members of the NBA have condemned your apology and have stated clearly that you do not speak for them. And as a lay person in legal matters but an implacably fierce opponent of all manifestations of fascism in our evolving experiment in truly democratic and just political governance, I can tell you that to thousands of us outside the legal profession, your apology means absolutely nothing except an attempt to prevent discussion of the deeper implications of the Supreme Court ruling for the fate of ACJA in the Buhari era. This leads directly to the second of the two issues that I wish to raise in this open letter to you, Learned Barrister Alegeh.

ACJA 2015: to be or not to be, that is the question. Your ‘apology’ and J.B. Daudu’s contempt threats are clear in their suggestion that ACJA or no ACJA, interlocutory appeals and stays of proceedings have come to stay in criminal cases in Nigeria. And it is on record that many members of the right-wing, opportunistic flank of “SAN” hegemons within the NBA have come out forcefully and gleefully in praise of the Supreme Court ruling and therefore in support of continuation of the status quo. However, it seems that a deep division exists within the NBA on this matter since most of those who have criticized the Justices of the Supreme Court are also highly respected members of the “SAN” hegemony. Furthermore – and this is absolutely crucial – even before the passing into law of ACJA, there had been innumerable indications that many highly placed members and institutions within the legal profession in Nigeria were deeply dissatisfied with the embarrassingly long and protracted delays in the trial of looters in the country. On this particular matter, I give only one example out of the more than a dozen that I could give if space permitted me. Here it is: At the 2014 National Conference, by a unanimous decision, the Committee on Law, Judiciary, Human Rights and Legal Reforms headed by Justice George Oguntade (rtd) recommended that a special anti-corruption court be set up that would do away with all the technicalities and niceties of conventional courts that delay and prolong the trial of looters in Nigeria.

To conclude, Learned Barrister Aleghe, you do not preside over an NBA that is united in its opposition to the implementation of ACJA 2015! Thus, the question is: on which side are you? Here is another question, perhaps even more pertinent: under your presidency of the NBA, will Nigeria continue to be the ONLY country in the world in which interlocutory appeals and stays of proceedings to more or less permanently delay trial are admitted in criminal cases, especially where, without exception, all of the cases involve looters and money launderers?

Second letter: Mallam Abubakar Malami, SAN, Minister of Justice and Attorney General of the Federation (AGF)

Dear Mallam Malami:

Not out of disrespect but due to the fact that the open letter above that I address primarily to the NBA President was also intended for your due consideration, my letter to you will be even shorter and more to the point than the letter to the NBA President. Before going into this letter, with its conditioned and inevitable brevity, permit me to congratulate you and wish you well in your duties as the Attorney General of the Federation in an administration that many in our country and the world expect to be defined, almost above every other achievement, by its successful prosecution of the war against corruption. As the cabinet minister that will organize and prosecute the legal front in this war, you perhaps need to be reminded that the corruption you will face is the mother and the father of all corruption whose larger-than-life scale lies precisely in the fact that for far too long, it has found an almost impregnable breeding ground in the law! Thus, it is nothing short of a social-cannibalistic corruption that consumes not only a large part of our national wealth and assets, but the very lives of the vast majority of our peoples who, through this seemingly invincible corruption, are forced into lives of easily avoidable poverty and insecurity, not only for themselves, but for their children and children’s children. That is if, Heavens forbid, you/we lose the war!

Dear AGF, in the year 2001, the Hon Justice J. Fabiyi made a declaration that I wish to bring to your attention. By the way, this is the same Justice Fabiyi that acted as the presiding justice in the Supreme Court ruling two weeks ago that granted a stay of proceedings in Bukola Saraki’s favour in the FRN V. Bukola Saraki case. Here is the extraordinary declaration that the learned justice made in the case Ekwenugo V. FRN (2001):

“Nigerian judges do not operate in utopia. We operate in Nigeria. And no Nigerian judge can claim that he has not heard that Transparency International rates our nation-state as the most corrupt in the whole universe in the year 2000”.

Echoing these words of Justice Fabiyi from the year 2000, I assert that no Nigerian judge, no Nigerian lawyer today can claim that he or she has not heard that Nigeria is the only nation-state in the whole universe where interlocutory injunctions and stays of proceedings are applied in criminal cases – and only in criminal cases pertaining to looters and money launderers. Dear Mallam Malami, under your tenure as the AGF, will this anomalous distinction, this national badge of judicial aberration continue to apply to our country exclusively among all the countries in the world?

As I said, this will be a very brief note to you. For this reason, let me end on the following reflections around the currently raging controversy within the NBA concerning the implementation or conversely, non-implementation of the Administration of Criminal Justice Act of 2015 (ACJA). There is a deep division within the NBA on this question. Many radical and highly influential senior advocates have spoken out for the implementation of ACJA. Needless to say, I am on their side, as are indeed the vast majority of thinking, literate and patriotic Nigerians. But as indicated in the letter above to the NBA President, quite a number of senior advocates in the professional legal community have applauded the ruling of the Supreme Court that seemed to have killed or invalidated key provisions of ACJA. I am of course not a member of the NBA, but my guess is that for the most part, those who are struggling for the non-implementation of ACJA are those among the “SAN” elite of the legal profession who for a long time have been beneficiaries of the status quo that saw Nigeria emerge as the only country in the world where interlocutory appeals apply in criminal cases, the only country in the world where looters are far more successfully prosecuted abroad than in Nigeria itself for the same crimes. As the saying goes, charity begins at home. As the new AGF, you have no choice but to throw your weight behind the implementation of ACJA – if the Buhari administration hopes to convince the outside world that the legal battles against looters will be won, not only abroad but also at home.

May you find the wisdom, the astuteness and the courage to deal with this challenge!